25th September 2014

Sean Rigg died in Brixton police station in August 2008 after prolonged restraint by police.Following the Metropolitan Police Service’s (MPS) decision in May 2014 to suspend PC Andrew Birks and withdraw their initial acceptance of his resignation, PC Birks brought a judicial review claim against the MPS arguing that their decision to maintain his suspension and to continue to block his resignation was unlawful.

Today Mrs Justice Lang upheld the decision of the MPS to suspend PC Birks and refuse his resignation, holding that due to “the gravity of the allegations” against PC Birks “the public interest requires that he should remain in the force to answer any charges of misconduct which may be brought against him and the other officers involved.”  The judgment highlights the need for misconduct investigations following deaths in custody to be fully effective, in accordance with the state’s obligations under Article 2 of the ECHR.

In August 2012, the jury at the inquest into Sean Rigg’s death returned a damning verdict criticising the actions of the police and the unsuitable use of restraint.  Since then, an independent review heavily criticised the original Independent Police Complaints Commission (IPCC) investigation and the IPCC subsequently decided to re-open the disciplinary and criminal investigations into Sean’s death.

On 13 May 2014, the High Court quashed the IPCC’s original investigation with the consent of all parties on the basis that the original investigation was flawed and inadequate. This enabled the IPCC to revive its disciplinary investigation into PC Birks and the other officers, and raised the prospect of disciplinary action against all four officers along with the custody officer Sergeant Paul White.

However, the resignation of PC Birks was tendered and accepted before the IPCC were able to serve him with a notice under the misconduct regulations.  The Rigg family’s solicitors wrote to the Commissioner of Police of the Metropolis to argue that the Commissioner acted unlawfully in accepting the resignation of PC Birks and asked the Commissioner to immediately withdraw his acceptance so that justice could take its proper course. 

Subsequently, at the end of May 2014, the MPS decided to suspend PC Birks and rescind acceptance of his resignation. The MPS considered the position further on 14 August 2014 but determined that PC Birks should remain suspended from duty pending the outcome of the IPCC investigation, at which time it would be re-considered further.

On 22 August 2014, PC Birks brought a judicial review against the MPS, arguing that the 14 August decision was unlawful. Mrs Justice Lang has now dismissed PC Birks’ judicial review, emphasising “the importance of identifying wrongdoers and making findings against them, where there are deaths in custody as a result of police misconduct, falling short of criminal conduct”.

Mrs Justice Lang refused the application of PC Birks for permission to appeal.

Prior to the judgment handed down today there have been many instances where police have avoided disciplinary proceedings by resigning or retiring.  In the four year period up to the end of March 2013, 38 police officers across the country retired or resigned during the course of independent IPCC disciplinary investigations.  In a speech to the Police in May this year, the Home Secretary Theresa May restated the government’s intention to end this practice. Although she announced that intention as far back as February 2013, the situation remains unchanged. As Mrs Justice Lang noted in her judgment, “Despite the legitimate concern of disciplinary proceedings against police being fully pursued there is no legal bar on an officer resigning while facing disciplinary proceedings”.

Marcia Rigg-Samuel, Sean Rigg’s older sister said:

"Thankfully, the Judge has agreed with Bernard Hogan-Howe’s decision not to allow PC Andrew Birks to resign in order to become a curate in the Church of England, pending the outcome of the IPCC’s disciplinary investigation. 

For decades families have been frustrated that officers have been allowed to use this escape hatch and avoid disciplinary action for alleged wrong-doing.

I and my family hope that this will now set a precedent for other families who face the same dilemma as my family have following a death in custody, and avoid upset and anguish when an officer leaves the police service before an investigation into his or her conduct is complete.  

After six long unnecessary years, a little bit of justice goes far - but why should a family have to fight so hard for it?  It was sheer luck that we found out about PC Birk's resignation before it took effect, yet we now learn that the MPS knew about it all along. 

I insist that the IPCC vigorously and speedily move on with the investigation for all concerned and this Government immediately seek cross party support for a change to the law making it mandatory for officers to remain in post where misconduct investigations are ongoing. Coupled with that, these IPCC investigations need to be properly funded so they can be competent and fast."

Deborah Coles, co-director of INQUEST said:

It is unacceptable that police officers are able to evade accountability for wrongdoing and frustrate the justice process in this way. This is not an isolated case but part of a systemic problem that allows the police to remain above the law.

“The government stated early last year that they intended to end this practice. However, still nothing has been done. This gaping flaw in the police complaints system must be urgently addressed.

“INQUEST welcomes the Judge’s ruling in this case, as it ensures that a proper Article 2 compliant investigation can now be concluded into the serious allegations against PC Birks.

“The practice of police officers resigning to avoid potential disciplinary proceedings causes additional upset for the families of those who have died in police custody and further erodes public confidence in the police service.”

INQUEST has been working with the family of Sean Rigg since August 2008. The family is represented by INQUEST Lawyers Group members Daniel Machover  from Hickman and Rose Solicitors and barristers Leslie Thomas of Garden Court Chambers and Jude Bunting of  Doughty Street Chambers.